166 S.E. 382 | W. Va. | 1932
This review involves questions of procedure and right to appeal from a decree overruling the demurrer to an answer and directing a reference to a commissioner in chancery.
To the plaintiff's bill, which had for its purpose the winding up of the affairs of a partnership and the obtaining of a decretal judgment by the plaintiff against the defendant, the defendant's demurrer was overruled. The court required him to answer within thirty days after the adjournment of the term at which the order was entered. An answer was not filed within the period fixed by the court, but about two months thereafter, at a succeeding regular term of said court, the defendant tendered an answer. The court's order which was then entered reads: "Whereupon the said defendant, by his attorney, moved the court for permission to file his answer in this cause, which answer being seen by the court is permitted to be and is hereby filed; whereupon the plaintiff, by his attorney, moved the court for permission to file his demurrer in writing to said answer of the defendant, which demurrer in *672 writing being seen by the court is permitted to be and is hereby filed; and which demurrer the court overruled * * *." This portion of the order is immediately followed by a reference of the cause to a commissioner in chancery for purposes designated in the order.
When the belated answer was tendered the plaintiff had a right to object to its being filed because the defendant had ignored the requirement of the court that the answer be filed within a specified time. Code 1931,
Under our revised procedure the only manner of challenging the sufficiency of an answer or other pleading is by demurrer. Code 1931,
Other difficulties, however, lie in our path. The bill is not so framed as to afford the definite information necessary as the basis for a decree pro confesso. The plaintiff must take proof upon order of reference or otherwise. So, although the defendant by his delay forfeited his right to answer, the plaintiff was not in position to take a decree as prayed for in his bill.
And, after all of this is said, we are faced with the proposition that the decree from which this appeal was attempted is a mere interlocutory decree, in no wise decisive of any principle of the case. "To be appealable, an interlocutory decree must in some way put into effect some finding of law or fact, in the cause, and also be of such character as to bring it within some statutory provision authorizing an appeal from an interlocutory decree."Garrett v. Garrett,
Perhaps some of the observations we have made in this opinion are not altogether required in the state of the record, but inasmuch as the case will go back for further proceedings we deemed it advisable to discuss the procedural matters involved.
Dismissed. *674